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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 00-cv-00379-PSF-OES SAN JUAN CITIZENS' ALLIANCE, SOUTHERN UTE GRASSROOTS ORGANIZATION, Plaintiffs, v. GALE NORTON, Secretary, United States Department of the Interior; and the UNITED STATES BUREAU OF LAND MANAGEMENT, Defendants, and SOUTHERN UTE INDIAN TRIBE and AMOCO PRODUCTION COMPANY, Intervenors.

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TABLE OF CONTENTS I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. C. D. Plaintiffs Have Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BLM's Refusal to Prepare a Single Basin-Wide EIS Resulted in a Failure to Adequately Address Cumulative Impacts . . . . . . . . . . . . . . . . The SUIR FEIS Fails to Evaluate a Reasonable Range of Alternatives . . BLM's Avoidance of the Need to Comply with FLPMA by Artificially Segregating the SUIR FEIS from Analysis of Basin-Wide CBM Development Further Demonstrates the Detrimental Effects and Inadequate Analysis of BLM's Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 2 7 10

12 13

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I.

INTRODUCTION Plaintiffs' present motion most directly addresses the Final Environmental Impact

Statement ("FEIS") for coalbed methane ("CBM") development on the Southern Ute Indian Reservation ("SUIR"). However, the claims and arguments contained herein must be evaluated in the broader context of similar and related activities occurring throughout the San Juan Basin ("Basin"). In light of Plaintiffs' allegations since the inception of this litigation that BLM has failed to conduct a comprehensive cumulative impacts analysis of Basin-wide oil and gas activities, the alleged failure to thoroughly analyze cumulative impacts of the proposed action in the artificially segmented SUIR FEIS and failure to consider an adequate range of alternatives in that same document, must be reviewed within the broader context of Plaintiffs' complaint. Likewise, Plaintiffs' standing to bring this action and the viability of their separate Federal Land Policy Management Act ("FLPMA") claim must also be viewed with the broader implications of Basin-wide CBM development in mind. While Plaintiffs' standing to challenge the SUIR FEIS is fully established in the pleadings and the declaration of Dan Randolph attached to this filing, Plaintiffs also have demonstrated interests that will be harmed by related Basinwide CBM extraction. Similarly, Plaintiffs' FLPMA claim, should be viewed in this broad context so as to avoid the unlawful and artificial segmentation of the SUIR, where FLPMA does not apply, from the remainder of the Basin, where FLPMA's relevance is undisputed. The SUIR FEIS is fatally flawed in that it failed to adequately address the cumulative impacts arising from actions proposed in that segregated document along with impacts from related, similar and connected actions occurring throughout the Basin. The FEIS also fails to evaluate a reasonable range of alternatives, specifically excluding from review a true "no-action" alternative, a Basin-wide EIS alternative, or an alternative addressing the foreseeable requests to further increase well density to one well every 80 acres. The FEIS should be invalidated as an arbitrary and capricious agency decision, and all actions authorized pursuant to that EIS enjoined pending issuance of a valid FEIS fully complying with NEPA's purpose and strict standards.
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II.

ARGUMENT A. Plaintiffs Have Standing

Plaintiffs recognize the need to demonstrate standing as a component of and in conjunction with the claims raised in this motion. Defendants do not contend that Plaintiffs lack standing. Rather, they object to Plaintiffs' failure to submit declarations with their opening brief to establish such standing. Therefore, Plaintiffs now submit the declaration of Dan Randolf to complement the portions of earlier pleadings further demonstrating standing, and Judge Blackburn's findings that Plaintiffs adequately plead specific and concrete injuries for purposes of proving standing and overcoming motions to dismiss by both the BLM and the Intervenors in this action. In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., the Supreme Court synthesized previous standing jurisprudence, concluding: We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons "for whom the aesthetic and recreational values of the area will be lessened" by the challenged activity. 528 U.S. 167, 183 (2000) ("Laidlaw")(citations omitted) (plaintiffs had standing to bring environmental claims requesting injunctive relief and civil penalties, where the plaintiffs had alleged use of the lands at issue, and alleged that the defendant's actions caused harm to their use and enjoyment of those lands). Plaintiffs in this action have more than met this burden.1 See Randolph Declaration at ¶¶ 7-14.

. The plaintiff organizations bring this action on behalf of the organizations and their members. Second Amended Complaint at ¶¶ 17-18. In the same case, the Supreme Court also discussed the organizational or associational standing requirements: An association has standing to bring suit on behalf of its members when its members would otherwise have standing to bring suit in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit. Laidlaw, 528 U.S. at 182; see also Defenders of Wildlife, 504 U.S. at 573 n. 8.
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Here, plaintiffs have alleged that their members live on and adjacent to the Reservation and federal public lands at issue. Second Amended Complaint ("2nd AC") (Docket # 55) at ¶¶ 17, 18; Randolph Dec. at ¶ 5. Plaintiffs have alleged recreational and aesthetic interests in those lands as well. 2nd AC at ¶ 22; Randolph Dec. at ¶ 14. Plaintiffs further allege that their members' interests in the use of those lands are being adversely affected. Id. at ¶¶ 19, 20, 21, 22; Randolph Dec. at ¶¶ 10, 11, 13, 14. Plaintiffs have also asserted their interests in BLM's compliance with NEPA regarding that agency's CBM related activities in the San Juan Basin. 2nd AC at ¶¶ 17, 19, 20, 21; Randolph Dec. at ¶¶ 6-8, 10-13. The plaintiff organizations have explicitly alleged the interests of their staff and members in BLM's CBM related activities in the region as well as in the information that they would be provided through proper implementation of the NEPA process. 2nd AC at ¶¶ 17, 18, 19, 20, 21, 22; Randolph Dec. at ¶¶ 6-13. In sum, plaintiffs have alleged informational, procedural, educational, cultural, personal residential, recreational use, aesthetic, and conservation interests, as well as harm to those interests, which establish standing to bring this action. In Laidlaw, the Supreme Court confirmed that aesthetic and recreational interests are adequate to establish standing. 528 U.S. at 183. In Competitive Enterprise Institute v. National Highway Traffic Safety Admin., 901 F.2d 107 (D.C. Cir. 1990) the Court held: Allegations of injury to an organization's ability to disseminate information may be deemed sufficient particularly for standing purposes where that information is essential to the injured organization's activities, and where the lack of information will render those activities infeasible. id. at 122, and further stated that the threshold for establishing informational injury is lowered by NEPA's twin purposes of ensuring well-informed government decision making and encouraging public participation in that process. See also Heartwood v. U.S. Forest Service, 230 F.3d 947, 952 n.5 and accompanying text (7th Cir. 2000) (procedural and informational harm); Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) (procedural injury deemed adequate to confer standing on plaintiffs in NEPA case). Plaintiffs have supported these

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allegations with further citations to particular environmental impacts and procedural defects stemming from BLM's CBM related activities that contribute to the harm of their stated interests. 2nd AC at ¶¶ 51-62, 75, 76, 78, 79, 83-88, 92, 94, 102. Moreover, Plaintiffs have identified an undeniable track record of participation in CBM and oil and gas related issues in this region, including extensive involvement in related administrative proceedings, as well as a comprehensive agenda of information requests pursuant to the Freedom of Information Act, and dissemination of that information to increase public education and awareness of oil and gas related issues, and public participation in the decisionmaking processes affecting their interests. Randolph Dec. at ¶¶ 6-13. Thus, Plaintiffs suffer an "informational" injury-in-fact from the BLM's failure to conduct proper environmental analysis under NEPA, which would have otherwise provided Plaintiffs with the information necessary to be well informed about BLM activities, information which is necessary to comment upon or bring challenges to such decisions. Such "informational" injury is a cognizable injury-in-fact. Federal Election Comm'n v. Akins, 524 U.S. 11, 21-25 (1998) (plaintiff suffered harm sufficient to support standing from the lack of information the statute was designed to provide); cf. Blue Ocean Preservation Society v. Watkins, 754 F. Supp.1450, 1459-60 (D. Haw. 1991) ("NEPA's function is to assure that adequate information is provided at the decision-making stage on a proposed action.") See also Colorado Environmental Coalition v. Lujan, 803 F. Supp. 364 (D.Colo. 1992) (recognizing informational injury in support of standing under NEPA); Oregon Natural Desert Ass'n v. Green, 953 F.Supp. 1133, 1141 (D.Ore. 1997) ("ONDA") (same). In addition to having demonstrated "injury in fact," Plaintiffs have also shown that "(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162 (1997). At the outset, it is important to recognize that the Supreme Court has explicitly addressed the relaxed significance of these additional standards in the
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context of procedural claims such as those arising under NEPA: There is this much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he can not establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. Lujan v. Defenders of Wildlife, supra, 504 U.S. at 572-73 n.7 (emphasis added). Plaintiffs satisfy the causal connection requirement in this procedural NEPA challenge. If, pending completion of a lawful NEPA analysis of BLM's CBM related activities in the San Juan Basin, ongoing and continued CBM development authorized under the challenged FEIS is enjoined, significant adverse environmental impacts and harm to Plaintiffs' interests would be avoided. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1516 (9th Cir. 1992) ("Notwithstanding the fact that their concrete effect might be seriously mitigated at the sitespecific, project level, the initial plan and wilderness recommendation represent important decisions. . . . The [plaintiff's] complaint is that the faulty EIS has made possible development that wilderness designation would have prevented."); Oregon Environmental Council v. Kunzman, 817 F.2d 484, 491 (9th Cir. 1987) ("The plaintiffs alleged numerous violations of NEPA's procedural requirements . . . Procedural failures in EIS preparation create a risk that environmental impacts will be overlooked and provide sufficient injury in fact to support standing.") Also, the relief requested by Plaintiffs would redress these injuries by requiring BLM to correct these procedural violations which would likely relieve future environmental harms, and would certainly abate Plaintiffs' informational harms. Plaintiffs' environmental, procedural and informational injuries would be specifically and tangibly redressed by such compliance. An order from this Court prohibiting unlawful activity pending completion of a lawful programmatic EIS will provide meaningful relief from the environmental harms such activities are causing, and

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will also ensure that BLM complies with NEPA in a timely fashion, and that Plaintiffs will be allowed to participate in that process before agency action is implemented. Lastly, the Plaintiffs also meet the "prudential" "zone of interests" standing test. As explained by the Ninth Circuit in Graham v. Federal Emergency Management Agency, 149 F.3d 997 (9th Cir. 1998), "the test is not meant be particularly demanding ... the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id. at 1004. In Lujan v. National Wildlife Federation, the Supreme Court ruled that "[w]e have no doubt that `recreational use and aesthetic enjoyment' are among the sorts of interests [that NEPA was] specifically designed to protect." 497 U.S. at 886. Plaintiffs' procedural and informational interests also fall within the "zone of interest" envisioned by NEPA. In Foundation on Economic Trends v. Lyng, 943 F.2d 79 (D.C. Cir.1991), the Court followed the Supreme Court's guidance and concluded that "providing information to organizations such as [the plaintiff] was one of the objectives of NEPA ..., so that the [plaintiff] is `aggrieved' within the meaning of NEPA." Id. at 85 citing Lujan v. National Wildlife Federation. See also Federal Election Comm'n v. Akins, 118 S.Ct. at 1783-86 (finding plaintiff's right to information within zone of interests of statute which included public disclosure of information as one of its purposes); Competitive Enterprise Institute, 901 F.2d at 122 (informational injury); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir. 1992) ("because `NEPA is essentially a procedural statute designed to ensure that environmental issues are given proper consideration in the decision making process,' injury alleged to have occurred as a result of violating this procedural right confers standing.") Therefore, as previously held by Judge Blackburn in response to Defendants' earlier motions to dismiss, Plaintiffs have standing to bring this action.

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B.

BLM's Refusal to Prepare a Single Basin-Wide EIS Resulted in a Failure to Adequately Address Cumulative Impacts

Defendants' characterization of their duty to comply with Federal environmental laws on the Indian Reservation such as the SUIR as "wholly independent" of their obligations to manage public lands off the reservation, summarizes BLM's flawed approach to conducting NEPA analysis of the extensive CBM development activities throughout the San Juan Basin. See BLM Brf at pp. 7-8. Plaintiffs do not contest the fact that the government's trust obligations to Indian Tribes create additional duties and alter others, however, it is overreaching to declare that land management decisions and environmental impacts from actions which cross the Reservation/Public Lands boundary are completely unrelated. While BLM did superficially expand its analysis to identify the potential cumulative impacts occurring from similar actions beyond the Reservation boundaries, it is this "wholly independent" vision of management responsibilities on the Reservation that set the stage for the inadequate cumulative impacts analysis BLM ultimately included in the FEIS. Indeed, the analysis of CBM activities in the Basis, but off the Reservation, is characterized by assertions that it is too "difficult to predict" what the nature of development and resulting impacts will be both north and south of the Reservation, (FEIS at 4-276), and deferral of required analysis of true cumulative impacts throughout the Basin to future EISs. FEIS at 2-8. Plaintiffs' argument that BLM should have prepared a Basin-wide EIS is not putting "form over substance" as BLM asserts. Contrary to BLM's characterization of the SUIR FEIS as a "programmatic" analysis of the cumulative impacts arising from CBM development, (AR Disc 2 Doc. 1374 at 3), the decision document fundamentally fails to incorporate a thorough cumulative impacts analysis. The CEQ regulations state that where "proposed actions have cumulatively significant impacts," they are "cumulative actions" that "should . . . be discussed in the same impact statement." 40 C.F.R. § 1508.25 (a)(2). "Under § 1508.25, two or more agency actions must be discussed in the same impact statement where they are `connected' or

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`cumulative' actions." Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 999 (9th Cir. 2004) (emphasis added). Defendant's failure to adequately consider the cumulative impacts of connected, similar and cumulative activities throughout the Basin, in the narrow EIS prepared for just the SUIR, has resulted in poor analysis that will lead to uninformed decision-making when site-specific CBM projects are developed. Basin wide cumulative impacts analysis is necessary to insure CBM impacts throughout the Basin can be comprehensively understood before the extensive ongoing and future CBM development are allowed to continue. See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir. 1990) ("where several foreseeable similar projects in a geographical region have a cumulative impact, they should be evaluated in a single EIS.") BLM argues that this Court should defer to the agency's decision to avoid preparation of a single EIS. BLM Brf. at 25-26. However, deference to agency decisionmaking in the context of NEPA is not a license for an agency to act arbitrarily, and this Court "need not forgive a clear error of judgment." Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998). "Although federal agencies are given considerable discretion to define the scope of NEPA review, connected, cumulative, and similar actions must be considered together . . ." Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894 (9th Cir. 2002), citing Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105, 1118 (9th Cir. 2000); see also Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 998 (same). Defendants rely on Kleppe v. Sierra Club, 427 U.S. 390 (1976) to support their segmented NEPA review. BLM Brf. at 17-18. However, Kleppe supports Plaintiffs' argument that a more comprehensive cumulative impacts analysis should have been prepared. In Kleppe, the Court examined whether the government should have conducted a "comprehensive impact statement" to analyze the environmental effects of a range of proposed coal leasing projects in the Northern Great Plains. Id. at 409-15. The Court explicitly held that "when several proposals . . . that will have cumulative or synergistic environmental impact upon a region are pending
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concurrently before an agency, their environmental consequences must be considered together." Id. at 410 (emphasis added); see also id. at 413 ("Cumulative environmental impacts are, indeed, what require a comprehensive impact statement.") As Defendant points out, the San Juan Basin is the "second-largest gas-producing basin in the continental United States." FEIS 1-1. Recognition of this significant reality supports thorough and comprehensive analysis of the significant impacts that arise from such a large undertaking. It is undeniable that the expansive oil and gas development occurring throughout the Basin, drawing from a natural resource that exists across political boundaries, is contributing to the environmental and other impacts both on and off the SUIR. Defendants' claim that CBM development in the SUIR is not part of a "master plan", but rather is "entirely independent," (BLM Brf. at 21), blatantly disregards the reality of proliferating CBM development occurring simultaneously all around the Reservation. Defendants also argue that the Ninth Circuit case of Earth Island Institute v. United States Forest Service, 351 F.3d 1291 (9th Cir. 2003) supports their segregated approach. Though the Court ruled that a single EIS was not required in the Earth Island case, its analysis compels a finding that one is mandated in for the San Juan Basin. In Earth Island, there was uncertainty about whether the standard under 40 C.F.R. § 1508.25(a)(2) ­ if multiple actions have "cumulatively significant impacts" ­ was satisfied. See 351 F.3d at 1305 (noting that the two projects "may have `cumulatively significant impacts'" (emphasis added)). Here, on the other hand, BLM does not dispute that there are cumulative impacts from CBM activities throughout the San Juan Basin. See FEIS at 4-273 (identifying with specificity reasonably foreseeable oil and gas development on non tribal lands within the "Study Area," in the San Juan Basin north of the SUIR, and in the New Mexico portion of the San Juan Basin, all of which will have cumulative environmental and other impacts). In such a situation, where environmental impacts are common to actions on and off the SUIR, but within the geographically defined San Juan Basin, and where clarity and consistency are served by a combined analysis, a court owes little or no deference to
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the agency's decision to separate the environmental analysis into multiple documents. Furthermore, the other factors identified by the court in Earth Island weigh in favor of requiring the BLM to prepare a single EIS. CBM development, whether on or off the SUIR, is occurring within a single geological basin with a single airshed and multiple watersheds that span the borders between Federal and Tribal lands, and between States. See Earth Island, 351 F.3d at 1305 (noting that the Ninth Circuit has required a single EIS for activities in "the same watershed"). Further, CBM development throughout the San Juan Basin is for practical purposes, and in the larger scheme of things, occurring simultaneously. The mere fact that BLM delayed it's NEPA compliance for one portion of the artificially divided Basin longer than it did for another portion, does not support an argument that the different timing of these actions justifies separate NEPA review. Cf. Earth Island, 351 F.3d at 1305 (joint EIS not required in part because timber sales "proceeded on separate time schedules"). Artificially separated time schedules do not warrant the same flexibility.2

C.

The SUIR FEIS Fails to Evaluate a Reasonable Range of Alternatives

BLM also failed to consider a reasonable range of alternatives in the SUIR FEIS. Merely including reference to alternatives that warranted further analysis in the section of FEIS entitled "Alternatives Considered But Not Analyzed In Detail," does not satisfy this fundamental NEPA requirement. Defendants' reliance on Custer County Action Ass'n v. Garvey, 256 F.3d 1024 (10th Cir. 2001), is misplaced, (BLM Brf at 47), in that it does not account for the fact that the so-called "status quo" on the SUIR and in the San Juan Basin included CBM infill development that has

Defendants claim that Plaintiffs should be prohibited from making these argument by the scope of their comments on the Draft EIS, (BLM Brf at 19), however, those comments clearly express Plaintiffs' belief that the Basin wide oil and gas development warranted consideration in a single EIS.
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been occurring without the benefit of NEPA analysis considering the cumulative impacts of drilling at 160 acre spacing.3 The simple inclusion of any infill wells renders the purported "noaction" alternative unlawful. For many of the same reasons discussed above, short of actually preparing a Basin-wide EIS, BLM should have at the very least fully considered the alternative of doing so, and informed the public with a thorough and rational explanation for its decision to simply "eliminate" this alternative from detailed analysis. FEIS at 2-7, 2-8. Furthermore, BLM's statement that two other EISs being prepared in the Basin "will contain comprehensive cumulative-impact and mitigation analyses," does not justify the omission in the SUIR FEIS itself and continuation of development activities in the interim. FEIS at 2-8. BLM also failed to fully analyze the potential and foreseeable cumulative impacts of CBM drilling at an even greater density of one well every 80 acres. As noted in the Alliance's comments on the Draft EIS, "[i]ndustry representatives have publicly expressed its desire to move to eighty-acre spacings and the COGCC director has acknowledged that economics might make eighty-acre spacing attractive." FEIS Vol II, Comment U at 7 (CD 5 at feis-pdf-sec 5.9, DEIS Comments, Comment U). The failure to consider this foreseeable scenario, which has materialized as discussed in Plaintiffs' opening brief at pp. 27-28, constitutes a fundamental lapse in BLM's duty to fully disclose the potential environmental impacts of the proposed action. In fact, there is no data or analysis provided in the FEIS justifying the determination that such an alternative, although identified as a possible alternative based on prior record evidence that 80acre spacing would likely be sought by the industry, should not be considered in more detail. Moreover, in its response to comments, BLM indicated that if 80-acre spacing ultimately is

Contrary to BLM's and the Intervenors' arguments, (BLM Brf at 48; Int Brf at 56), the COGCC's approval of infill wells and the Alliance' unsuccessful IBLA appeal, do not change the fact that the infill wells being drilled were never subject to a thorough cumulative impacts analysis in a comprehensive NEPA document.
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proposed it could not proceed without "subsequent programmatic NEPA" evaluation. As we have seen, BLM is allowing such infill without having fully analyzed it in the SUIR FEIS and without conducting a new programmatic NEPA analysis.

D.

BLM's Avoidance of the Need to Comply with FLPMA by Artificially Segregating the SUIR FEIS from Analysis of Basin-Wide CBM Development Further Demonstrates the Detrimental Effects and Inadequate Analysis of BLM's Actions

Plaintiffs concede that FLPMA does not apply to Tribal lands. However, because BLM should have conducted a more comprehensive Basin-wide cumulative impacts analysis, rather than artificially segregating its analysis of CBM development in the San Juan Basin into separate EISs, Plaintiffs' FLPMA claim, alleging that the ongoing and continued CBM development throughout the Basin, on and off the SUIR, is a non-conforming use under the relevant Resource Management Plan, further demonstrates the inadequacy of BLM's NEPA compliance. After the development of an RMP, future resource management authorizations and actions shall conform to the approved plan. 43 C.F.R. § 1610.5-3(a); see Pennaco Energy, Inc. v. U.S. Dept. of the Interior, 377 F.3d 1147, 1151 (10th Cir. 2004). "Conformity" means, "that a resource management action be specifically provided for in the [RMP], or if not specifically mentioned, shall be clearly consistent with the terms, conditions, and decisions of the approved plan or plan amendment." Id. at § 1601.0-5(b).4 As noted in Plaintiffs' opening brief, CBM development was not considered in the 1985 San Juan-San Miguel RMP, nor in that document's subsequent amendments. Thus, any and all CBM development activities not envisioned in the RMP are by definition "non-conforming," and

"The statutory directive that BLM manage `in accordance with' land use plans, and the regulatory requirement that authorizations and actions `conform to' those plans, prevent BLM from taking actions inconsistent with the provisions of a land use plan. Unless and until the plan is amended, such actions can be set aside as contrary to law pursuant to 5 U.S.C. § 706(2)." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373, 2383 (2004).
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unlawful. Defendants do not deny this simple fact, but rather, continue to push their segregated approach to analyzing impacts from similar, connected and cumulative CBM activities occurring throughout the San Juan Basin. The fact that such extensive CBM development is able to occur within the San Juan Basin, albeit confined within the boundaries of the SUIR, without any attention whatsoever to the fact that this is clearly a non-conforming use, highlights the inadequacy of BLM's segregated approach. The proposed and ongoing CBM development in the San Juan Basin should be addressed in a single EIS and should only be allowed to continue after appropriate amendments to the over-riding RMP are made. Even if this Court were to determine that Plaintiffs' FLPMA claim should be dismissed because FLPMA does not apply on Tribal lands, such dismissal must be limited to the context of the present motion only. This litigation's broader focus challenges the unlawful authorization of ongoing and continued CBM development throughout the San Juan Basin. While the present motion most directly challenges the SUIR FEIS because that is the portion of the San Juan Basin CBM NEPA analysis which has been completed, Plaintiffs' pleadings clearly sought broader NEPA compliance and challenged the more comprehensive approval of CBM extraction throughout the Basin. Piecemealing the NEPA analysis in order to avoid both a thorough cumulative impacts analysis as required under NEPA and to allow the agency to skirt the issue of required conformance with the San Juan-San Miguel RMP should not be condoned by the Court.

IV.

CONCLUSION For the foregoing reasons the SUIR FEIS fails to satisfy NEPA's fundamental purposes of

ensuring fully informed decision making after providing the public with full disclosure and an opportunity to comment on the environmental impacts of a proposed action and reasonable alternatives to that proposed action, and the specific requirements that an EIS thoroughly address cumulative impacts of the proposed action and also consider a reasonable range of alternative actions. Consequently, the SUIR FEIS should be invalidated and all actions authorized pursuant
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to that unlawful decision document should be enjoined.

RESPECTFULLY SUBMITTED, December 12, 2005.

s/ Geoff Hickcox Geoff Hickcox, (CO Bar # 26942) Western Environmental Law Center 679 E. 2nd Ave., Suite 11B Durango, CO 81301 Phone: (970) 382-5902 Fax: (970) 385-6804 [email protected] Attorney for Plaintiffs

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